Excerpt:civil procedure code (act v of 1008), order xxii, rule 3 - abatement--death of one of several respondents pending appeal--legal representatives not brought on record--total abatement--proceedings to set aside abatement--omission to serve notice on surviving respondents--right of such respondents to object at hearing of appeal--inam grant to darga for majavar service--confirmation on service being rendered--majavardar's right to surplus income. - .....the original grantee declaring that only those who do service to the darqa were entitled to the darga income and that the plaintiff, being a woman could not do any service. the decision in suit no. 190 of 1817 itself was that in consequence of an arbitration of an agreement among certain descendants of the original grantee the plaintiffs in suit no. 190 of 1817, who were among the descendants of the original grantee, were entitled to 2 out 4 shares of the surplus income of the endowment, provided that they did 'the majavar and all other services along with the defendants,' and that, as the defendants had prevented the plaintiffs from doing service in the year in question they must pay to the plaintiffs' half the surplus income of that year. but it appears that in 1826 an ancestor of.....

Judgment:

Reilly, J.

1. In this suit the District Munsif made declarations:

(1) That 'the village of Hassanapuram has been dedicated for the upkeep of the Badhu Sahib Darga and the mosque near it in the village of Pallavaramand also for the support of the majavars of the said Darga and mosque.'

(2) That the plaintiff, defendants Nos. 1-8 and 25 and 29 and certain other persons are entitled to do majavar service in the said Darga and mosque and share in the surplus proceeds of the income of the said village and the other properties appertaining to the said Darga and mosque and also to share in two sevenths of the collections made in the urus festival conducted at that Darga and mosque.

(3) That the plaintiff and defendants Nos. 5, 6, 7, and 8 are each entitled to certain arithmetical shares in the income (4) that none of the parties except defendant No. 1 was entitled to manage the Darga, mosque or property and (5) that defendant No. 1 was entitled to continue in management until some other arrangement was made by competent authority: and he made an injunction restraining the plaintiff and the other defendants from interfering with defendant No. 1's management and he made a decree that defendants Nos. 1 and 2 should make certain payments to the plaintiff and defendants Nos. 5, 6, 7 and 8 for their shares of the income for Faslis 1320/1322. Against that decree defendants Nos. 1 to 4 appealed, and as defendant No. 1 died his representatives were added as appellants in his stead. On appeal the Subordinate Judge dismissed the suit. The plaintiff has preferred this second appeal.

2. Mr. Jayarama Iyer, who appears for defendants Nos, 3 and 4; has raised a preliminary objection that the appeal has abated because defendant No. 6 and Nuruddin, one of defendant No. 7's representatives (who was brought on record in the Subordinate Judge's Court) died since the second appeal was filed and their representatives were not brought on record in time. To that Mr. Venkatachariar for the plaintiff has replied that Mr. Jayarama Iyer's objection cannot be raised now as the representatives of defendant No. 6 and Nuruddin have been brought on record and any abatement caused by their absence set aside in this Court after notice to them though not after notice to Mr. Jayarama Iyer's clients. A good many authorities have been quoted before us on this question; but I do not think it necessary to discuss them. If this appeal is one which in the absence of the representatives of defendant No. 6 and Nuruddin must altogether abate, then Mr. Jayarama Iyer's clients can certainly claim to be heard if they wish to object that those representatives were not brought on record in time and that the abatement should not be set aside. As the order bringing on record the representatives of defendant No. 6 and Nuruddin and setting aside any abatement due to their absence was made in this case without notice to Mr. Jayarama Iyer's clients, he can raise this objection for them at the hearing of the appeal, and we are bound to hear it. It is obviously unreasonable to suggest that when an appeal in which a number of respondents are concerned has abated against all the respondents because some of them have died and their representatives have not been brought on record in time it is enough before setting the abatement aside to give notice to those representatives alone without giving any opportunity to the surviving respondents to defend the advantage which has accrued to them. If by some oversight the abatement is set aside formally without notice to the surviving respondents, their objections, if any, must be heard when the appeal comes on for hearing. This is elementary and no authority is needed to support it. There may be cases in which it is doubtful whether the abatement of an appeal against one or more respondents who have died involves its abatement against the surviving respondents. If, as in this case, surviving respondents maintain that by reason of the death of other respondents whose representatives have not been brought on record in time the appeal has abated against them also, but the appellant denies that the appeal has abated against the surviving respondents, the surviving respondents must still be allowed an opportunity to raise their objection for what it is worth, if no such opportunity is allowed to them before the appeal comes on for hearing it must be allowed to them then. We can never deny to a surviving respondent altogether an opportunity to defend the decree in his favour by urging that it has become unassailable either by delay in appealing or by abatement of the appeal. In this case we have not heard in detail Mr. Jayarama Iyer's arguments why the delay in bringing on record the representatives of defendant No. 6 and Nuruddin should not have been excused because it appears clear that the appeal against Mr. Jayarama Iyer's clients had not abated by reason of that delay, on which question we have heard him in full. Neither defendant No. 6 nor defendant No.7 disputed the plaintiff's claims in the suit, and the plaintiff in this appeal does not contest the District Munsif's decree in their favour. When defendants Nos. 1 to 4 appealed against the District Munsif's decree defendant No. 6 as well as the plaintiff supported that decree, and the representatives of defendant No. 7 who died while that appeal was pending before the Subordinate Judge did not appear. The plaintiff now asks for the restoration of the District Munsif's decree which the Subordinate Judge set aside, dismissing the plaintiff's suit. He neither asks for, nor can he get, by this appeal anything to the detriment of defendant No. 6 or defendant No. 7 or their representatives. As against defendants Nos. 14 he could have got that decree restored had his appeal against them been successful even without bringing on record the representatives of defendant No. 6 or defendant No. 7. It cannot, therefore, be contended successfully by defendants Nos. 3 and 4 that any abatement of the appeal in respect of defendant No. 6 or defendant No. 7 involves the abatement of the appeal as against them, In my opinion the preliminary objection raised by defendants Nos. 3 and 4 must be overruled. Whether the defendants who support the plaintiff but did not appeal against the dismissal of the suit by the Subordinate Judge can get anything out of this appeal is another question.

3. Mr. Jayarama Iyer has eventually admitted that the plaintiff is a majavar of the Darga in question. The learned Subordinate' Judge has dismissed the plaintiff's suit on the ground that the endowment is only 'for the upkeep of the Darga and its majavars' that is the majvars who do actual service that no one does service as a majavar who does not take part in lighting the Darga and sweeping it and keeping it clean and that the plaintiff has not done service as majavar in that sense. The original grant is not available. Exhibit A is a copy of the judgment of the District Court of Chingelput in Suit No. 190 of 1817 on its file. That judgment quotes a decree of the Wallaja Court of 1774 in a suit brought by a lady descended from the original grantee declaring that only those who do service to the Darqa were entitled to the Darga income and that the plaintiff, being a woman could not do any service. The decision in Suit No. 190 of 1817 itself was that in consequence of an arbitration of an agreement among certain descendants of the original grantee the plaintiffs in Suit No. 190 of 1817, who were among the descendants of the original grantee, were entitled to 2 out 4 shares of the surplus income of the endowment, provided that they did 'the majavar and all other services along with the defendants,' and that, as the defendants had prevented the plaintiffs from doing service in the year in question they must pay to the plaintiffs' half the surplus income of that year. But it appears that in 1826 an ancestor of the plaintiff and defendants Nos. 1 to 4 and some of the other defendants Subedar Major Nuruddin Sahib, who was himself a descendant of the original grantee bought from other descendants or heirs' of the original grantee fractional shares amounting in all to nearly 2 out of the 4 shares mentioned and that his purchases were eventually recognized by the Board of Revenue and the Government In 1865 the inam was confirmed by the Government and it is held under the terms shown in the inam register Ex. C. That shows 16 person as the owners of the inam holding it in various shares. The inam was confirmed in favour of those persons 'so long as the Darga is in good order and service therein is rendered. Column 8 of Ex. C shows that the inam was originally 'granted for the support of the Darga situated in Pallavaram and for that of its Mavanjams which is admitted to be a mistake for or equivalent to majavars or servants'; and column 10, in which the inam, is shown as 'free of tax so long as the service is rendered' implies that it was hereditary. It is clear that the inam is now held under the grant as confirmed in 1865 by the Government. Exhibit C shows that it was confirmed in favour of the persona named and implicitly their descendants 'so long as the Darga is in good order and the service therein is rendered.' It was not confirmed in favour of the 16 persons named so long as they themselves and their descendants rendered service nor in favour of such of them as rendered service. Among the sharers named in Ex. C were 5 ladies who, it is admitted, were gosha ladies and it cannot be suggested that it was intended that they should render service personally. It has indeed been suggested that it may have been intended that their male descendants should enjoy their shares if those male descendants did service. But Ex. C does not indicate that the shares of these ladies are to be in abeyance but transmissible to their male descendants nor that those of the sharers who do not do service are not to share in the income nor what is to be done with their shares while they do not do service. Three of the persons from whom Subedar Major Nuruddin Sahib obtained shares by purchase appear to have been women who could not themselves render service and yet the Government recognized that they had a transferable interest and that that interest had passed by descent from the transferee to other women who again could not render service personally. Whatever may have been the views of the original grant taken by the Wallaja Court in 1774 or by the District Court of Chingelput in 1817, the grant as confirmed by the Government in 1865 appears to have been a hereditary grant to the 16 persons named in Ex.0, to continue so long as the Darga was maintained in good order and the service was rendered by someone. By whom the service was actually rendered was naturally not a matter which interested the Government. That appears to me to be the proper way to interpret the confirmation of the grant as shown in Ex. C. There is only one thing in Ex. C which might be thought to throw doubt on that interpretation. In the column for the Deputy Collector's opinion and recommendation it is noted that Syed Karim, grantee No. 6 had not been in enjoyment of his share for 30 years that 'the service due to' that share had been rendered by the other manujars who had been enjoying that share that the reason assigned for his 'neglect' was his dissatisfaction with the disposal of his claim to a share mortgaged by his brother's widow. But the Deputy Collector adds that Syed Karim has now agreed to hold his share and perform the service attached to it and that he has entered Syed Karim's name as he sees no transaction by which Syed Karim has forfeited his share. The Deputy Collector goes on to say that 'if Syed Karim still persists in absence his share will be enjoyed by the other Mavijans Nos. 9 to 16 (of whom five it may be noticed were women) who will perform in addition his share of service which has been done hitherto for the last 35 years'. Apart from the reference to the women among grantees Nos. 9 to 16 these remarks of the Deputy Collector appear at first sight to imply that the enjoyment of a share depended on rendering service in person. But, taking into consideration his reference to the women, I doubt whether he meant anything more than that in his opinion a sharer who disclaimed all interest in and responsibility for the Darga was not entitled to enjoy his share. At any rate I do not think that the Deputy Collector's remarks and opinion about Syed Karim can be treated as embodied in the confirmation of the grant, which is in favour of the persons named so long the service is rendered, not so long as it is rendered by them personally. If we turn to the inam statement Ex. HH (that is the statement of the claimants), which is signed among others by the father of defendants Nos. 3 and 4, though we find a similar difficulty in the reference to Syed Karim not having rendered service and, therefore, the other sharers having rendered service for his share and having enjoyed the income of his share, we find also that 5 ladies are shown in column 1 among the persons enjoying the income of the inam, though it is not suggested that any of them was rendering any service personally. It is quite clear, I think, that in spite of the reference to Syed Karim the signatories to Ex. HH had no intention of maintaining that only those who actually rendered service at the Darga were entitled to share in the income.

4. I do not think it necessary to discuss whether a mujavar, who is sometimes something much more important than a mere servant or sweeper--see Munnavaru Begam Sahibu v. Mir Mahapalli Sahib 51 Ind. Cas. 489 : 41 M. 1033 can be said to render his service by mere supervision nor whether the plaintiff at times actually rendered service in that way. It is not denied that the actual service at the Darga has been performed satisfactorily by defendants Nos. 5 and 6, who do not oppose the plaintiff's claims, and that the Darga is maintained in good order. That being so, the conditions of the grant as confirmed are being performed and the sharers are entitled to the surplus income. That the plaintiff has inherited a share if the sharers are hereditary, is not disputed. The plaintiff, therefore, cannot be denied a share in the surplus income of the years in question merely because he did not personally light or sweep the Darga. In my opinion the appeal from the District Munsif's decision, so far as it concerns the plaintiff, should now be remanded to the Subordinate Judge for disposal in the light of that finding. So far as the District Munsif's decision was in favour of any of the defendants, as they have not appealed against the dismissal of the suit by the Subordinate Judge, the District Munsif's decree in their favour has gone. The suit is not one for general partition and we decide nothing as between the defendants inter se. The costs of this appeal will abide and follow the result of this appeal before the Subordinate Judge. The Court-fee on this will be refunded.